Xxx Xxxxx Agreement - Final -10/28/99
EXHIBIT 10.28
OUTLOOK SPORTS TECHNOLOGY
TEGRA DRIVER INFOMERCIAL
HOST AGREEMENT
This Agreement ("Agreement") is made by and between Outlook Sports Technology,
Inc., a Delaware corporation with its principal place of BUSINESS LOCATED AT 000
XXXXX XXXXXX, 0XX Xxxxx, Xxx Xxxx, XX 00000 (hereinafter referred to as
"Company"), and Xxx Xxxxx, a person, with primary residence located at 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, (hereinafter referred to as "Talent") and
is entered into on THIS DATE OF EXECUTION MARCH 5, 1999, in the following
circumstances:
Background
The Company is engaged in the business of golf club design and
marketing. Talent is a professional sports broadcaster. Company and Talent
desire to work together in a national advertisement campaign for the promotion
and sale of the Company's golf equipment during the Term of this Agreement, all
in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in the consideration of the mutual covenants contained herein,
the parties do hereby agree as follows:
1. SERVICE: Talent shall appear as the Host in (1) or more versions of
a golf oriented thirty (30) minute infomercial ("Infomercial") and direct mail,
point-of-sale, outbound telemarketing, catalogs, packaging, web sites,
billboards and broadcast advertisements promoting the Company's Tegra driver, to
be sold to consumers through direct response and retail sales. Company retains
the rights to the said materials produced hereunder, and the right to edit the
Infomercial into various shorter lengths. For the purpose of this agreement,
"Products" shall mean Tegra titanium drivers as defined in schedule A attached
hereto and incorporated herein by reference.
2. ENDORSEMENT: Company shall have the exclusive right and license to
use, reproduce and distribute Talent's name, approved photograph, message,
voice, initials, approved likeness or signature of talent, or any words and/or
sounds, and/or symbols, and/or graphic representations which identify Talent
and/or his named identity or likeness during the Term (as defined in Paragraph
3) for purpose of advertising, promoting, marketing, sales and distribution of
Products including, without limitation, use on label and packaging for the
products and in print, broadcast, electronics, and any other media now known or
hereafter created, subject to quality control provisions set forth in this
Agreement.
3. TERM: Twelve months beginning with the first use of the materials,
or beginning on June 1, 1999, whichever occurs first. Notwithstanding the option
provisions in Paragraph 8 herein, all of the results and proceeds of Talent's
services hereunder, including but not limited to uses of Talent's name, approved
image or approved likeness and all other materials using Talent's name, image or
likeness shall terminate upon the expiration of any Term or Option Term.
4. DAYS OF SERVICE: All production is to take place during two (2)
twelve (12) hour sessions during the month of March, 1999 on a day and at a
location to be determined by mutual agreement, plus an extra voice over session
later for "looping", if needed, with the available dates not to conflict
provisions set forth in this Agreement. This extra session shall be held at a
mutually convenient studio. In the event of an overrun, Talent will make himself
available for an additional 12 hour session at the rate of $7,500 and for a
second additional 12 hour session at the rate of $15,000. This compensation is
additional to any other compensation earned under Paragraph 7 below.
In addition, Talent agrees to make himself available, during the Term
of this Agreement, at the Company's request, on three days (for a maximum of
eight hours per day) for the purposes of making appearances including public or
promotional appearances on behalf of the Company's Products (hereinafter defined
as "Appearance Dates") as compensated in Paragraph 7(B) below.
The Company recognizes that Spokesperson is presently an employee of
the National Broadcasting Corporation ("NBC") and his primary obligations are to
NBC. The Company will make a best effort to schedule all appearances around
Spokespersons existing schedule.
5. EXCLUSIVITY: During the Term of the Agreement, Talent agrees not to
endorse or appear in advertising for any other golf clubs. Nothing herein shall
preclude Talent from appearing in the entertainment information or news program
including lead-ins and lead-outs regardless of sponsorship.
6. AREA OF USE: Worldwide.
7. COMPENSATION: Talent shall receive compensation according to the
following Schedule:
A. Infomercial
1. $25,000 to be paid within two weeks of the signing of this contract, but
prior to Talent performing any days of service.
2. $25,000 to be paid upon completion of filming.
3. Talent shall receive a royalty equal to One and One Half (1.5%) percent
of gross sales of Product based on the retail price on the gross orders of the
Product in response to the infomercial (less customary discounts, returns, bad
checks, cancellations, declines, shipping and handling, sales and/or use taxes,
and credit card charge backs) (hereinafter "Royalty"). All Royalties shall be
applied against $175,000 in guaranteed royalty payments (hereinafter "Guaranteed
Royalty"). The first $50,000 of the Guaranteed Royalty is deemed paid in full
upon payments made by the Company to Talent under provisions A(1) and A(2) of
this paragraph. One Hundred Twenty Five Thousand Dollars ($125,00) of this
Guaranteed Payment is to be paid quarterly in four equal payments of $31,250 to
be paid 90 days after the first use of the materials, or beginning or September
1, 1999, whichever occurs first.
4. Within forty five (45) days after the expiration of the Term, the
Company shall pay to Talent, the balance of the Royalty less the Guaranteed
Royalty payments previously made, should any be owed.
B. Appearance Dates
Ten Thousand Dollars ($10,000) per appearance date, payable within fifteen
(15) days after the completion of the appearance. *In CONJUNCTION WITH THE
SPOKESPERSON AGREEMENT, THE FEE SHALL BE PAID ON THE 1ST, 4TH & 7TH appearances.
*/s/X. Xxxxxxx 3-17-99
C. Payment Terms
All Compensation will be made payable to "The Marquee Group for the
services of Xxx Xxxx". Federal I.D. # 00-0000000.
8. OPTION TERM: The Company shall have the option to extend this
Agreement upon thirty (30) days written notice prior to the expiration of the
Term, for one additional year (hereinafter "Option Term") with a continuation of
the Royalty as defined in Paragraph 7 and a Guaranteed Royalty payment of Two
Hundred Thousand Dollars ($200,000) paid quarterly during the Option Term.
During the Option Term, the Company shall have the option (but not the
obligation) to require Talents services to appear in a sequel to the
infomercial. Talent shall be required to perform similar days of service as
provided in Paragraph 4 for an additional Fifty Thousand Dollars ($50,000) for
the work required in filming the sequel and $15,000 for each Appearance Date
during the Option Term.
9. TRAVEL ARRANGEMENTS: For the service described herein Company agrees
to supply Talent with the price of one (1) round trip first-class airfare, one
(1) first class hotel room, transportation portal to portal, and per diem of
Three Hundred ($300) Dollars per day (work and travel). In addition, the Company
shall reimburse Talent for all first class travel expenses incurred in
connection with any Appearance Dates.
10. APPROVAL: Talent shall have script, copy, likeness, print, and
photo approval, not to be unreasonably withheld including but not limited to
approval over any statements made by or attributed to Talent. Artist to have
approval over hair, makeup and wardrobe. If the Company supplies wardrobe,
Artist shall be entitled to keep same at no cost. Approval rights must be
exercised within five (5) business days of Talent's receipt of script or photos,
otherwise it shall be deemed that approval has been given.
11. ON-LINE PRODUCTION: Company shall be responsible for on-line
production. Concerning this Campaign, Company represents THAT ITS SIGNATORY
AFFILIATE, , is and will continue to be throughout the term of this Agreement
and any extension thereof, a signatory to the AFTRA Infomercial Single Project
Agreement, and Company shall pay to all unions which may have jurisdiction.
Pension and Health contributions as required in connection with Talent's
services hereunder, and shall provide Talent with evidence of such payments.
12. INDEMNIFICATION:
A. Company shall indemnify, defend, and hold harmless Talent from and
against any and all damages, claims, actions, damages, cost, recoveries,
judgements, penalties and expenses of any kind whatsoever (including reasonable
attorney/legal fees and disbursements) which may be obtained against, imposed
upon or suffered by Talent in defending a claim, lawsuit or other proceedings
arising from or relating to the services of Talent herein, and the results and
proceeds thereof, or relating to Company, or the products or any advertising or
other exploitation thereof (including the Infomercial), including without
limitation any use of the materials, the programs or shows which Talent appears
and the Products, including without limitation any defects, infringement of any
intellectual property or other property rights of any third party; from
Company's breach of any of its obligations to Talent, or any of its
representation or warranties hereunder; produced under and the advertising and
promotion thereof.
B. Talent agrees to indemnify Company should Talent fail to pay any
assessments or taxes due on Talent compensation hereunder. Talent will be
responsible for any payments to be made to his agent with respect to Talent's
services hereunder. Talent acknowledges that for the purposes of retaining his
services hereunder, Talent is an independent contractor and will not be
considered an employee of Company. Talent agrees to indemnify and hold harmless
the Company from and against any and all damages arising out of or in any way
related to third party claims or government fines or penalties based on the (1)
negligent or willful acts or omissions of the Talent in relation to the
activities described in this Agreement not at the direction of the Company, (2)
any loss of or damage to property, personal injury or death resulting from the
negligent or willful services of the Talent hereunder, or (3) any breach by
Talent of any obligation to be performed or any other agreement of
representation made by Talent herein except to the extent such damages arise
from the gross negligence or willful neglect of Company.
13. FORCE MAJUERE: IF FOR ANY UNFORESEEABLE REASON OUTSIDE OF COMPANY'S
CONTROL, such as strikes, boycotts, war, act of God, labor troubles, riots,
delays of commercial carriers, or restraints of public authority, Company shall
be unable to use and/or reuse any of the materials produced hereunder during any
period of the term hereof, then Company shall have the right to extend the term
hereof for an equivalent period, without any additional compensation to Talent,
but this period shall not exceed two (2) weeks. Company may only suspend/extend
once; must provide prior written notice; and continue to pay earned royalties.
14. DEATH: In the event of the Talent's death during the term hereof,
the payment obligations under this Agreement shall continue in full force and
effect and Company shall pay any monies due to Talent's estate and the estate
shall, under no circumstances, be required to return any monies previously paid
to Talent under this Agreement.
15. ILLNESS: If Talent shall fail to fulfill its obligations described
in Paragraphs 1 and 4 or during the Option Term as provided in Paragraph 8, due
to Talent's illness, injury, accident, or significant change in physical
appearance, then Company shall have the right to terminate this Agreement if
Talent is prevented from rendering services for more than thirty (30) days. In
such event, Company shall have no obligation to make any payments to Talent for
the services Talent has not performed, and any and all monies that had been paid
to Talent for those specific services will be refunded to Company immediately.
16. ACCOUNTING AND AUDIT RIGHTS: During any Term hereunder, Company
shall furnish to Talent, on a quarterly basis, within thirty (30) days after the
last day of each quarter, a complete detailed statement setting forth all gross
sales revenues including number, description and sales price of product shipped
and sold. Include itemized list of all deductions permitted hereunder to arrive
AT ROYALTIES SET FORTH HEREIN. Compensation due Talent shall be paid to Talent
simultaneously with the submission of these statements, unless payment is due
earlier per the terms of this Agreement. Talent, or a representative designated
by Talent in writing, shall be entitled to audit and examine and make copies of
all records reasonably related to sales and/or calculation of royalties
hereunder, upon reasonable prior written notice to Company. All such records
must be maintained by Company for a period of two (2) years from the date of
termination of this contract. Talent shall have the right to audit these records
for a period of one (1) year following each Term set forth in Paragraphs 3 and
8. All such inspections shall be at the expense of Talent, unless such
inspections disclose a variation of Client's accounting records of three percent
(3%) or greater, in which case the reasonable out-of-pocket and audit expenses
shall be paid for by Client.
17. PROFESSIONAL BEHAVIOR: Talent agrees that at no time during the
Term will Talent disparage the Product, Campaign or Company. If Talent does
disparage the Product, Campaign or Company, Company shall have the right after
written notice to Talent and a failure by Talent to cure within five (5)
business days, to terminated this Agreement without waiver of any and all other
legal remedies. Company's decision to terminate hereunder must be exercised, if
at all, not later than fifteen (15) days after the facts giving rise to such
right under this paragraph are brought to Company's attention.
18. PAY OR PLAY: The payment of the required compensation provided in
Paragraph 7(A)(1) and 7(A)(2) hereof, will fully discharge all of Company's
obligations hereunder and Company shall not be obligated to produce, broadcast,
telecast, or publish any of the materials or to utilize Talent's services
hereunder. If Company fails to compensate Talent by the Terms hereof, or
otherwise breaches the terms of this Agreement, upon receiving written notice
from Talent of the breach, Company shall have thirty (30) days to cure, except
that such fifteen (15) day cure period shall be reduced to fifteen (15) days if
Company fails to compensate Talent. Failing same, and in addition to any other
remedies to which Talent may be entitled, Talent shall have the right to
terminate this contract and all uses of Talent permitted hereunder.
19. TERMINATION: The Company, at its option may terminate this
Agreement at any time prior to the expiration of forty (40) days commencing with
the first use of the materials, or on August 1, 1999, whichever occurs first.
The payment of the required compensation provided in Paragraph 7(A)(1) and
7(A)(2) hereof, will fully discharge all of Company's obligations hereunder and
Talent will not be entitled to any further compensation.
20. RIGHT OF FIRST REFUSAL: If, during the Term of this Agreement,
Talent is given a firm offer to endorse any competing product manufactured by
the Company, the Company will have the right to match said offer to Talent under
the exact terms and conditions within fifteen (15) days of notice that an offer
has been made.
21. ATTORNEY'S FEES AND COSTS: In the event of any litigation,
arbitration, or other dispute relating to this Agreement, the prevailing party
shall be entitled to payment of its reasonable attorney's fees and out-of-pocket
costs by the non-prevailing party.
22. INTELLECTUAL PROPERTY RIGHTS: Subject to the terms hereof and the
uses allowed hereunder, commercials, name and likeness trademarks of Company,
name and likeness of Talent as it relates to the promotion/marketing of this
Program, all scripts, raw commercial footage, and completed masters created
pursuant to this Agreement and performances recorded thereon shall be and remain
the sole property of Company. In addition all still photography, negatives,
slides and any form of electronic media shall remain the sole PROPERTY OF
COMPANY SUBJECT TO USE RESTRICTIONS CONTAINED HEREIN.
23. RELATIONSHIP OF THE PARTIES: This Agreement shall not constitute or
be considered as a partnership, employer-employee relationship, joint venture,
or agency between the parties hereto nor by or between any of their employees or
agents.
24. SEVERANCE: If any term, covenant, condition or provision of this
Agreement or the application thereof to any person or circumstance shall to any
extent be invalid or unenforceable, the remainder of this Agreement shall be
valid and shall be enforceable to the fullest extent provided by law.
25. AUTHORITY: Each of the parties hereby represents and warrants to
the other that it has the right, power, and legal authority to enter into and
fully perform this Agreement in accordance with its terms and that this
Agreement when executed and delivered by the parties will be a legal, valid and
binding obligation enforceable against the parties in accordance with its terms.
26. NOTICE: Notice by any party is deemed given when mailed, postage
paid, certified or registered return receipt requested, Federal Express or any
other overnight mail service, addressed to the parties appearing below:
To Spokesperson: Xxx Xxxxx
c/o The Marquee Group
000 0XX Xxxxxx
00XX Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
To Company: Outlook Sports Technology
000 Xxxxx Xxxxxx
0XX Xxxxx
Xxx Xxxx, XX 00000
Either party may, by written notice to the other, change the address to which
any such communications shall be sent. After notice of such change has been
received, any communications shall be sent directly to such party at such
changed address.
27. ENTIRE AGREEMENT: This agreement, consisting of the foregoing,
correctly sets forth the entire agreement between Company and Talent. No
agreements or understandings shall be binding on any of the parties hereto
unless specifically set forth in this agreement or modified in a separate
written agreement.
28. APPLICABLE LAW: This Agreement shall be construed and enforced in
accordance with the laws of the State of New York without regard to its
principals of conflicts of laws. Any action on this Agreement or arising out of
its terms and conditions shall be instituted and litigated in the courts of the
State of New York, City of New York. In accordance the parties submit to the
jurisdiction and venue of the State of New York and agree and acknowledge that
such a forum shall be a convenient forum for the resolutions of their questions,
disputes and other differences.
AGREED AND ACCEPTED:
for Outlook Sports Technology, Inc.
/S/ XXXX XXXXXX DATE 3-5-99
by: Xxxx Xxxxxx, CEO
and for: Xxx Xxxxx
/S/ XXX XXXXX DATE 3-5-99
by: Xxx Xxxxx
